Tuesday, January 24, 2006

Can You Hear Me Now?

In a widely-reported speech yesterday in Manhattan*, President Bush fought back against accusations that his secret NSA eavesdropping program is illegal and unconstitutional.

To that end, he cited a recent Supreme Court ruling, Hamdi v. Rumsfeld, which he said gives him "additional authority," adding, "It means Congress gave me the authority to use necessary force to protect the American people."

He did not add, incidentally, that the ruling in question addressed the indefinite detention of American citizens without due process, not executive power to spy. He also neglected to mention that he lost that case. In fact, that was the ruling where O'Connor famously opined, "A state of war is not a blank check for the President."

The Bushies are busily and loudly chanting that the President has the inherent authority to eavesdrop on phone conversations -- even domestic calls -- if there is reason to believe intelligence related to national security can be gleaned from them. In addition to Hamdi, Attorney General Gonzales has stated that the Congressional resolution authorizing the President to use force in the war on terror implicitly includes permission for surveillance, as well.

This is all very bizarre. Yes, the President has the power to authorize surveillance of mail, email and telephone calls. Are you ready for this, George? No one is disputing that.

In fact, the 1978 FISA law explicitly gives the Chief Executive that very authority. So what's the problem?

A big one. FISA requires that the President seek warrants from a special court for all wiretaps. Bush kinda sorta skipped that part.

Republicans, ever fearful of the blundering bureaucracy of Big Government -- even though the federal government under Bush II has grown more than it did under any president since F.D.R. -- argue, "In a life or death situation where time is of the essence, the President should not have to wait for a warrant if thousands or millions of lives are on the line."

That's a pretty good argument, if you ask me. Want to know something interesting? FISA agrees, too. The law gives the President a full 72 hours during which surveillance can be carried out before the operation must be reported to the warrant court, which can be convened within hours. If it were really a "life or death" situation, it's hard to imagine the President would not have sufficient evidence to convince the court of a warrant's necessity.

When this story first appeared in The New York Times, administration officials and supporters accused the press of breaching national security by alerting terrorists to our tactics, a defense the President still employs.

For this to be true, the terrorists in question would have to be so naive that they have no idea that the government has the ability to listen in on phone calls or that they might otherwise be under surveillance. It also implies that the warrant court might somehow tip the terrorists off.

The other strange argument is that alerting terrorists to our surveillance techniques will cause them to change their methods of communication, thereby making it harder for us to spy. My question, though, is this: if the terrorists know that mail, email and telephone calls, even domestic ones, run the risk of being intercepted, doesn't that put them at a disadvantage? Doesn't it make it harder for the terrorists, as well? And honestly, what does that leave them, smoke signals? Sign language?

No, there is only one reason that the President would secretly circumvent the warrant court, and that is because he knew or strongly suspected that his reasons for wanting to spy on various individuals would not meet even the court's low standards for authorization.

That there are conservatives out there who still defend this president is astonishing. A party based on the belief that government authority should be limited should not be headed by a man marked by blatant disregard for the best Constitutional safeguard against government overreach: the system of checks and balances.

* The one in Kansas. You couldn't find enough people in New York who could pass the audience screening to fill a McDonald's, and Bush doesn't have the balls to face an authentic crowd.

8 comments:

I agree that, under the condition that 72 hours are allowed before gaining a warrant, it is unreasonable to have unwarranted INTERNATIONAL wiretapping, but hasn't the argument of the administration been that warrants were recieved through secret courts set up to handle the manner without tipping off terrorists? This is not a rhetorical question (as most of my questions are) but an honest inquiry.

Also, are you indeed acknowledging that wiretaps in question are INTERNATIONAL wiretaps rather than domestic as have been executed in the past (Mafia, Commies)

No, LC, the administration's position is that Congress implicitly gave the President the authority to personally authorize wiretapping without a warrant.

The administration has conceded, following a report by the NY Times, that due to the extensive use of cell phones, it is not always possible to determine whether a call is in fact international, and that domestic calls have inadvertently been monitored.

Personally, I do not see the reason for the distinction. If the government has reason to believe a person might be connected to terrorist activities, then they ought to be able to be able to share enough information with a warrant court. If they don't have enough evidence for that, then I don't care where the call comes from, they don't have the right to listen in. There has to be this safeguard in place, otherwise the President can just listen to any phonecall he wants without any oversight whatsoever.

Why should an international call be subject to different criteria than a domestic one? You just got through arguing in the comments on the previous post that people in the middle east are entitled to a basic set of civil rights; that was one of the main thrusts of your argument in favor of fighting to establish a democracy there. Should we not extend the same essential legal protections to foreigners that we do to Americans? If not, why not?

The most important thing to remember is that no one is saying the government is not allowed to spy on its citizens. We are only saying that the executive branch must, by law, simply allow the judicial branch the opportunity to review requests to do so to avoid abuse.

"the government cannot engage in electronic surveillance 'except as authorized by statute.'" This was a statement by the FISA noted by Fredo (Bush's pet name) Gonzales. He noted that it did not say "the government cannot engage in electronic surveillance 'except as authorized by FISA and Title III.'" it said "by statute," which means that any statute passed by Congress took effect. That includes, "All force necessary", which may well take precedence over FISA Statute.

I get really frustrated with Republicans for their pandering at times (i.e. Lyndsey Graham, John McCain, Voinovich), so why do you not react in a similar manner when the Democratic protectors of liberty oversee and vote for such a general resolution reading "all necessary force" just because after 9-11 it was cool to be a John Wayne Conservative. Any one who has been through high school government class much less law school should know what such licence involves Constitutionally.

There wasn't difficulty telling what was international and what was domestic, the difficulties lay in "roving" surveillance, as suspects jump from cell phone to cell phone and agents have to jump from warrant to warrant. I think this is what your thinking of.

The difference between domestic and international phone lines is Constitutional. If you want to point to the 4th Amendment as a protection against wiretaps, which is what I would do were I concerned about invasion of our rights, you must concede that this amendment does not apply to external connections as it may to internal connections. For example, if the government were to search and seize a home in Mexico, as unhappy as the Mexican government would be, it would not be a violation of the fourth amendment.

The Constitution places first our own freedoms and securities, then those of other nations. Being that the only cases in which surveillance is used is when several phone calls are traced as incoming or outgoing to suspected terrorists, who are often jumping from phone to phone, brings to mind what they are talking about. I am sure that it is not pleasant, so before you try going out of your way to extend the protection of these individuals, consider who they are, and what they are doing. As for me, I would air on the side of the President's duty to protect us, as long as it is Constitutional.

After the crackdown in Tiananmen Square 1989 a family friend called my family to tell us he was alright and to explain what was happening in the city streets. After that call, we didn't hear from him for 14 years, until we visited Beijing in 2004. We found out he was still alive but was jailed for 10 years and "reformed", tortured and abused. They had caught him by tapping all National and International calls because of the Political climate at the time. He was accused of plotting against the government and being a traitor to the Communist Party. For obvious reasons, I am fiercely critical when it comes to a governments' so-called "justifiable" reasons for protecting it's country.

Oh, by the way, the 72 hour argument is flawed in that a layer of beaurocracy must still be traversed before gaining the ability to perform such a task without prior warrant. This may be the fault of the department, or it may be a solid argument for which international roving calls would not necessarily necessitate warrants in rare circumstances.